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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6678
Experience:  Significant experience in all areas of employment law.
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I just took a pr-employment drug screen and was called by the

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I just took a pr-employment drug screen and was called by the MRO's nurse who asked if I had prescription's for Adderall and Morphine, which I told her yes I do. She asked me to bring in the Rx's, which I did. She said she thought everything would be fine and that they should be calling my perspective employer in like 30 min. Well, several days passed and I finally get another call from this same nurse who says that the MRO wants to talk to me about my Rx's. So he asks me what I'm taking them for and says that my employer said that I would be driving clients around. I told the MRO that I would not be driving them as they have a Co. that does that already since they all have CP. So, the MRO said he will be clearing me. I am worried, though, that now my employer knows that I am taking medication that could interfere with my ability to drive, even though he did not tell them what medication I am taking. But, isn't that illegal to be discussing the fact that I take medication in the first place? And if they deny me employment, even though I was cleared, wouldn't that fall under "discrimination"? What can I do about this?
Submitted: 9 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 9 months ago.
Hello and thank you for entrusting me to assist you. My name is XXXXX XXXXX X will do everything I can to answer your question.

Pre-employment drug screenings are lawful in the state of California. If a pre-employment drug screening reveals prescription drug use which potentially compromises the applciant's ability to safely and effectively perform their job, the employer may conduct aditional inquiries into the employee's use of that medication.

If you are being hired for a position that does not require driving (as seems to be the case) and you can get a doctor to certify that your use of medication does not otherwise compromise you to perform the job advertised, then your prospective employer CANNOT reject your application on the basis of your use of prescription medecine.

Accordingly, the best course of action for an individual in your circumstance would be to confirm with your prospective employer that the position does not involve driving as an essential job function and immediately obtain certification from your doctor that use of your medications will not impair your ability to safely and effectively peform the job for which you are applying.

Beyond obtaining such certification from your doctor, your prospective employer is not entitled to make further inquiries into your medical history or medical conditions. If they refuse to hire you and you have the certification from your doctor, you may have a claim for disability discrimination under the Fair Employment & Housing Act.

Such claim can be pursued by filing a complaint with the Department of Fair Employment & Housing here: http://esq5.houdiniesq.com/dfeh2/esq/reg/

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes and kindest regards.
Customer: replied 9 months ago.

Dear XXXXX,


Thank you for responding so quickly and for the valuable information that you provided. I do, however, have more to ask as I have received a response from my employer. First of all, I was actually hired by this Company, and had signed a letter of acceptance with a start date of 9/30/13. It actually stated "Congratulations in becoming a part of our Co. Your start date is 9/30/13. Please meet at our main office at 9:00am to complete your new hire paperwork and be sent for a physical and live scan. This is a FT salary exempt position...etc. It goes on to state pay schedule, benefits etc. So, I did start on 9/30, was sent for the physical/ drug screen and live scan. Then I came back to the office and completed the paperwork which took until after 4pm. I was then told that I couldn't actually start until they received the test results back.


So, I received, on 10-8, a v/m from the HR lady at my office stating that "We are not able to have you work at this time. We spoke with the Doctor and there was a concern about a restriction on driving and you'll be driving from house to house and there's no guarantee you won't be driving clients at times, so at this time we are unable to offer you the position." First of all I strongly believe that the Co. is lying about the fact that I may need to drive clients around. I have worked in home health and hospice most of my career and every company I've worked for has asked for proof of auto ins. This company, however, asked me for everything but proof of auto ins. Also, during my second interview at one of the group homes, they explained the position quite clearly and stated that most of the clients go to day care M-F and are driven by a transportation company. They also said that I may, on occasion, need to go to the hospital prior to discharge of a client to make sure the client is appropriate to come back as there are restrictions on medical conditions that are not allowed at the homes, etc. And never said that I would need to drive a client anywhere. But, to me the fact that they never asked for auto ins. is proof enough. You would think that they would need to know if I drove a car that could accomodate a sheel chair bound client

Expert:  Patrick, Esq. replied 9 months ago.
Sharona,

Thank you very much for your reply. I can completely see where you are coming from.

With regard to the fact that you were technically already "hired" by the time you received notice of your disqualification, that is legally irrelevant because as an at-will employee you can be fired at any time.

What this issue comes down to, assuming you are otherwise capable of performing all other non-driving-related job tasks, is whether this position TRULY requires on-the-job driving as an essential duty or whether that is merely a pretense for unlawful disability discrimination. This issue would be resolved by the "trier of fact" (a jury in a civil trial) based on consideration of all relevant evidence, including your personal testimony, and job description you were provided, etc.

If a jury determined that on-the-job driving is not an essential component of the position as it was represented to you and your medications do not otherwise inhibit your ability to perform the job, you would most likiely prevail on a claim for disability discrimination in violation of FEHA.

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Customer: replied 9 months ago.

Dear XXXXX,


Well, I was surprised to see your response so quickly. I was trying to correct some spelling errors when my entire writings disappeared while only half way through my letter to you! So, I re-wrote everything, not knowing that what I thought had disappeared was actually sent, as I said only 1/2 done. You probably wondered why I sent that mid sentence!


 


Anyway, I really believe that this doctor was wrong in going to my employer and violated my HIPPA rights, prior to talking with me, by asking what my duties were going to be and if I were going to be driving clients anywhere. I was applying for an RN position, not a driving position. He could have, and should have in my opinion, spoken with me first and if he still had any concerns I could have offered a clearance from my doctor. This makes me feel that the doctor, himself, maybe had some unjustified concerns, and by doing this only put suspicion in the minds of my employers. Now, they are aware that I am taking one, or more, of the drugs I was tested for and so now they didn't want to hire me regardless about the driving. I believe that my employer lied when they said that I may need to drive clients around in order to get out of a discrimination suit. You had given me the web site for the Dept. of fair housing and employment, But by filing with them, will that get me any compensation? I don't know much about this organization so I'm not sure what they would be able to do for me? I had been looking for employment for about 10 months when I was hired at this company. I accepted this position, even though I would need to drive over 90 miles each way, as I was desperate for a job and they told me that the hours were flexible which worked well for me as I also have night classes three days a week. I turned down two interviews as I thought I already had secured employment. And, I stopped looking for jobs as well. This has also taking a tole on my emotional status as now I am afraid to apply for another job as this could possibly happen again. And, I now have to explain to family and friends that I failed the physical/ drug screen when most aren't even aware that I take medication. So, my question is do you think I should try and get an attorney, or will filing a complaint with fair housing take care of all of that. Since I haven't worked in so long, I can't afford an attorney unless it was contingent on winning the case. Thank you for your time in all of this.


 


Sharona

Expert:  Patrick, Esq. replied 9 months ago.
Sharona,

Thank you again for your reply. I'm sorry your last message got cut off.

You should know that HIPAA does not provide a private cause of action for violations under the Act. In other words, the doctor might get penalized if his actions are found to constitute a HIPAA violation, but as the victim of such violation you have no claim for damages under the Act.

If you had any cause of action against the doctor it would be for ordinary negligence, but then you'd have the prove that the doctor, by contacting your prospective employer directly, failed to exercised reasonable care. I'm not sure that you could characterize his actions in this manner, as there was a legitimate basis for his actions, albeit one which constituted a potential invasion of your privacy. I do not think this would be a strong claim, ordinarily speaking.

DFEH does investigate and prosecture violations of FEHA, but in general it is better to hire an attorney and sue in civil court if you can convince an attorney to handle your case on a contingnecy fee basis. The attorney's fee will typically be a third of your recovery, but you have someone advocating for your rights (the DFEH is just a neutral investigative and prosecuting agency, they are not looking out for you in particular), and judgments/settlement obtained in civil litigation tend to be larger.

I must be candid and say that attorneys tend to be very selective when it comes to accepting cases on a contignecy fee basis. They have to if they want to keep the lights on, since they are risking their own time and money with the possibility of no payoff if the claim doesn't succeed. Your facts raise some questions of wrongdoing but your case hinges on proving that driving is not an essential function of the position, which may be hard to show.

Therefore, I would probably try first to find an attorney on a contingnecy basis and if that is not possible, proceed with the DFEH. Ultimately, how you choose to proceed is up to you.

I hope this clarifies the situation for you.
Patrick, Esq., Lawyer
Satisfied Customers: 6678
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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